The US Department of Justice (DoJ) has submitted its views on the proposed amended settlement between the Authors Guild and Google, Inc. It has advised the District Court for the Southern District of New York that despite substantial progress reflected in the proposed agreement, class certification, copyright and antitrust issues remain. The DoJ has also said that the US remains committed to working with the parties on issues concerning the scope and content of the settlement.
In its statement of interest filed with the court, the DoJ stated that the US believes the parties have approached this effort in good faith, and that the amended settlement agreement is more circumscribed in its sweep than the original proposed settlement. However, the amended settlement agreement suffers from the same core problem as the original one. The DoJ has called the amended settlement an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the court in this litigation.
In September 2009, the department had submitted views to the court on the original proposed settlement agreement. At that time, it had proposed that the parties consider changes to the agreement that might help address the US’ concerns, including imposing limitations on the most open-ended provisions for future licensing; eliminating potential conflicts among class members; providing additional protections for unknown rights holders; addressing the concerns of foreign authors and publishers; eliminating the joint-pricing mechanisms among publishers and authors; and providing a mechanism by which Google’s competitors can gain comparable access.
In the latest filing, the DoJ has recognised that the parties made substantial progress on a number of these issues. Nevertheless, the department also said that the amended settlement agreement still confers significant and possibly anticompetitive advantages on Google as a single entity. This may enable the company to be the only competitor in the digital marketplace with the rights to distribute and otherwise exploit a vast array of works in multiple formats. The department continues to believe that a properly structured settlement agreement in this case offers the potential for important societal benefits.
The settlement agreement aims to resolve copyright infringement claims brought against Google by the Authors Guild and five major publishers in 2005. The claims arose from Google’s efforts to digitally scan books contained in several libraries and to make them searchable on the Internet. The district court’s hearing on the proposed amended settlement agreement is slated for February 18, 2010.
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